Revision: Jan. 25, 2017, 3:42 p.m.
HB 558-FN - AS INTRODUCED
HOUSE BILL 558-FN
SPONSORS: Rep. Horrigan, Straf. 6; Rep. King, Hills. 33
COMMITTEE: Criminal Justice and Public Safety
This bill prohibits contracting with a private or for-profit entity for the custody or operational control of state or county inmates. The bill also regulates the contracting and operation of an immigration detention facility in this state.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seventeen
Be it Enacted by the Senate and House of Representatives in General Court convened:
VI. The commissioner may enter into contracts with the state’s counties, the governments of other states, [and] the federal government, [and] or other appropriate [private] government agencies or facilities and make proper and necessary arrangements with them for the transfer and reception of inmates and allow transfers to state prisons of any person. Any person who is confined awaiting trial on a felony charge may be transferred to the state prison from the county correctional facility, upon the recommendation of the superintendent of the county department of corrections, and with the approval of the county commissioners of said county. The superintendent may transfer a prisoner, without the approval of the county commissioners, if the superintendent determines the transfer is necessary for public safety or emergency reasons. The county commissioners shall review any such transfer at their next regular meeting. If the county commissioners reject the transfer, the prisoner shall be returned to the facility from which the prisoner came as soon as practicable.
VII.(a) The commissioner may order the assignment and transfer of persons committed to his or her custody to correctional facilities of the department or correctional facilities operated by state governments in other jurisdictions, or public facilities under contract with the department. The commissioner shall not enter into a contract with a private or for-profit entity for the custody or operational control of state or county inmates. The prohibition on private or for-profit contracting does not include a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility that is not within the confines of a jail or prison.
(b) Notwithstanding subparagraph (a), if the governor, upon recommendation of the commissioner, declares by executive order that a corrections emergency exists that requires the commissioner to enter into a temporary contract with a private or for-profit entity to secure provisional housing for displaced inmates, the commissioner may enter into such a contract, pending approval of the governor and the council. Any such contract shall be for no more than 3 months and may be extended, with executive council approval, for no more than 3 months at a time and for no more than 21 months after the governor first determines that the prison emergency exists. Temporary contracts entered into under this section shall not permanently or indefinitely replace New Hampshire department of corrections correctional facilities or contracts with other publicly-operated facilities.
2 Applicability. Section 1 of this act shall not apply to any contract entered into prior to the effective date of this act by the commissioner of the department of corrections with a private entity for the custody of prisoners. Upon the expiration of any such contract, the commissioner shall transfer custody of such prisoners to a state or county correctional facility operated by the state of New Hampshire or another state government, or the federal government. This act shall not apply to contracts for goods and services which are ancillary to the custody of inmates such as medical or educational services, or repair and maintenance contracts.
3 New Chapter; Immigration Detention Facilities. Amend RSA by inserting after chapter 622-C the following new chapter:
IMMIGRATION DETENTION FACILITIES
622-D:1 Private Contracts Prohibited. The state or a political subdivision of the state shall not enter into or renew a contract, or modify a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants in civil immigration proceedings for profit.
622-D:2 Contracts for Immigration Detention.
I. If state or a political subdivision of the state chooses to enter into a contract, renews a contract, or modifies a contract to extend the length of the contract, to detain immigrants in civil immigration proceedings, it shall detain immigrants only pursuant to a contract that requires the immigration detention facility operator to adhere to the standards for detaining those individuals described in the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 and ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
II. An immigration detention facility operator, an agent of an immigration detention facility, or a person acting on behalf of an immigration detention facility, shall not deprive any immigrant detainee in civil immigration proceedings access to an attorney or any other person authorized by the Board of Immigration Appeals under Section 292.2 of Title 8 of the Code of Federal Regulations, access to a translator or interpretation services, medical care, freedom from harm or harassment, or privacy.
III. An immigrant detainee shall not be involuntarily placed in segregated housing in an immigration detention facility because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. Transgender and gender nonconforming immigrant detainees shall be given the option to choose a housing placement consistent with their gender identity.
IV. Nothing in this section shall prohibit an immigration detention facility operator from exceeding the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013 or ICE Directive 11065.1 (Review of the Use of Segregation for ICE Detainees).
V. If an immigration detention facility operator, or agent of an immigration detention facility, or person acting on behalf of an immigration detention facility, violates paragraphs III or IV, or the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1 (Review of Use of Segregation for ICE Detainees), the attorney general, or any county attorney, may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the state of New Hampshire. An action brought by the attorney general or any county attorney may also seek a civil penalty of $25,000. If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section, and the penalty shall be awarded to each individual who has been injured under this section.
VI. For purposes of this section, the following definitions shall apply:
(a) “Immigration detention facility” means a facility where immigrants are detained for civil immigration proceedings pursuant to an agreement between state or a political subdivision of the state and either of the following:
(1) The United States Department of Homeland Security or other federal agency.
(2) A private corporation, contractor, or private vendor.
(b) “Immigration detention facility operator” means an individual, firm, corporation, association, partnership, joint venture, commercial entity, municipality, commission, or state or a political subdivision of the state that operates or owns an immigration detention facility.
(c) “Segregated housing” means administrative segregation or disciplinary segregation, as defined in the 2011 Operations Manual ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or any other act resulting in an individual being segregated from the general population through prolonged physical or social isolation for hours, days, weeks, or years.
HB 558-FN- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill prohibits the Commissioner of the Department of Corrections from entering into a contract with a private entity for the custody and control of inmates, absent a corrections emergency. Additionally, the Commissioner would be prohibited from entering or renewing a contract with a private entity to detain immigrants for civil immigration proceedings and would impose specific standards for the treatment of detained immigrants. The Department of Corrections states this bill will have an indeterminable impact on its operations.
This bill authorizes the Attorney General to seek injunctive relief against any immigration detention facility operator that violates the provisions of this bill. The Department of Justice states this bill will not impact its operating budget because the State does not enforce immigration laws or detain immigrants for civil immigration proceedings.
The Judicial Branch states that if the Attorney General or a county attorney were to bring an action for injunctive relief for violations of RSA 622-D:2, III, or IV, the 2011 Operations ICE Performance-Based National Detention Standards as corrected and clarified in February 2013, or ICE Directive 11065.1, there could be an impact on the judicial system. Additionally, the Attorney General and county attorney may seek a civil penalty of $25,000. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the Judicial Branch has provided the potential costs associated with these penalties below.
Complex Equity Case
Complex Civil Case
It should be noted average case cost estimates for FY 2018 and FY 2019 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Judicial Council states this bill will not impact its operating budget.
The New Hampshire Association of Counties states this bill will not impact county expenditures or revenue.
The New Hampshire Municipal Association states this bill will not impact local expenditures or revenue.
Department of Corrections, Department of Justice, Judicial Branch, Judicial Council, New Hampshire Association of Counties, and New Hampshire Municipal Association